Mukasey and McCarthy: Personal testimony

The Wall Street Journal published a book review by former Attorney General Michael Mukasey yesterday. Judge Mukasey (as I will refer to him here) is one great American. He was the trial judge in the case of the Blind Sheikh and a man who answered the call of duty by resigning from the bench to take the position of Attorney General for the last two years of the Bush administration. He is a man who knows what he is talking about whenever he talks, and he is therefore always worth listening to.

The book under review is a memoir by Philip Mudd of his 24 years as an intelligence analyst at the CIA and FBI. As Judge Mukasey explains, “[h]e was part of the small team sent to aid anti-Taliban forces in Afghanistan in the days after 9/11 and then, in January 2002, was appointed second-in-command of the CIA’s new Office of Terrorism Analysis, the division of the Counterterrorism Center (CTC) where hundreds of analysts were assembled to gather information about al Qaeda.” For a period of time Mudd managed the information about terrorism in the “holy grail” of U.S. intelligence: the President’s Daily Brief. The book sounds like must reading, but what really caught my attention was Judge Mukasey’s personal testimony:

As attorney general from 2007 to 2009, I was among the beneficiaries of Mr. Mudd’s expertise at daily morning briefings at FBI headquarters. The complex threat streams were laid out, as was our need to rely on the often uneven work of hundreds of field offices and to fashion on-the-fly metrics to measure threats and successes. Mr. Mudd quotes with approval Secretary of State Colin Powell saying before a briefing. “Tell me what you know. Tell me what you don’t know. And then tell me what you think.” “I always thought,” Mr. Mudd continues, “that any conversation about the intelligence the briefer provided every morning should clearly articulate the differences between the three, along with the even more clearly defined separation from the fourth, non-intelligence, pillar: discuss the policy question, what we should do about the problem that’s just been defined.”

When the Obama administration took over in 2009, Mr. Mudd was asked to serve as head of intelligence of the Department of Homeland Security. He would have been ideal for the job, but the president had come to power vowing to punish those who, in his view, had gone beyond permissible bounds in the treatment of captured terrorists, including the then still-classified interrogation program administered, with Justice Department approval, by the CIA. Mr. Mudd, as he concedes in the book, had known about the program. And he may or may not have participated in a decision to send a detainee to another country for questioning—the so-called “rendition” procedure introduced during the Clinton administration. (“I couldn’t remember,” he notes, “which seemed to be a dodge unless you’d been involved in the variety and intensity of activities the Center had underway while I was there.”)

His nomination became controversial and one day he found that the White House lawyers who had been preparing him for his confirmation hearing failed to show up for a scheduled meeting: “Even an amateur analyst,” he notes, “could read that writing on the wall.” He withdrew from consideration and resigned from government service in 2010, at age 47. There are, of course, thousands of employees throughout the government charged with protecting our welfare. But there are few like Philip Mudd, and we can ill afford to lose any of them to the toxic posturing of the political classes.

Andy McCarthy prosecuted the case against the Blind Sheikh before Judge Mukasey. When Eric Holder was nominated to succeed Judge Mukasey as Attorney General, McCarthy opposed Holder without apology, based on his own experience. McCarthy turned to Holder’s role in “the terrorist pardons” issued by President Clinton at the close of his administration. These included the pardon of Susan Rosenberg, the subject of George Russell’s great Commentary essay. In his 2009 NRO column McCarthy recalled:

As it happens, I know a great deal about the Rosenberg case. For over a year prior to Clinton’s commutation of her richly deserved 58-year sentence, it was mine.

At the time, I was a federal prosecutor in the Southern District of New York — the office from which Holder was desperate to conceal his stove-piped pardon process since our knowledge of the Rich case would have blown to bits the absurd but unrefuted arguments [attorney Jack] Quinn was permitted to make directly to President Clinton.

Our office had indicted Rosenberg in the mid-Eighties in connection with the infamous Brinks robbery, in which the Weather Underground, together with the Black Liberation Army, killed two New York State troopers and a security guard. Rosenberg was never tried for the crime because, like Rich, she became a fugitive. Unlike Rich, however, Rosenberg spent her years on the lam plotting to kill more police officers, military personnel and American government officials. In November 1984, she and a cohort were captured in New Jersey. They had an arsenal worthy of a small army and were in the throes of plots to bomb more government buildings and slaughter more innocent people.

Rosenberg turned her New Jersey terrorism trial into a circus, posturing as a political prisoner. At her sentencing, she urged her supporters to continue their war against the United States. (“When we were first captured we said, we’re caught, we’re not defeated, long live the armed struggle. We’d like to take this moment to rededicate ourselves to our revolutionary principles, to our commitment to continue to fight for the defeat of U.S. imperialism.”) She expressed remorse about only one thing: she hadn’t had the courage to shoot it out with the police who’d apprehended her.

Her brazen barbarism moved a highly respected federal judge not only to impose the 58-year sentence but to recommend against parole (within the limits of then-existing law, under which convicts “maxed out” after two thirds of their jail terms). Southern District U.S. Attorney Rudy Giuliani then dismissed the Brinks charges: not because Rosenberg was innocent but because there had already been a grueling trial that Rosenberg didn’t deign to attend while she was out plotting murder and mayhem. There was no need for the pandemonium a second Rosenberg trial promised: the New Jersey sentence should have kept her on ice for at least 20 and, more likely, well over 30 years.

I got involved in the case because her clever lawyers — from high-octane Williams & Connolly, the same firm which had represented President Clinton in the impeachment process — tried to convince a judge to order the U.S. Parole Commission not to consider her participation in the Brinks atrocity. Their hope was that this would open the way for the commission to grant their terrorist client an early release. Ultimately, after a long, often heated litigation, they lost. (It has long been the law that sentencing courts and the Parole Commission may take into account any conduct, even if the defendant has been acquitted — which Rosenberg, of course, had not been.)

I finally persuaded the judge to rule against Rosenberg. Unbelievably, President Clinton then pardoned the terrorist — or, to be more precise, Clinton commuted the sentence to time-served, resulting in Rosenberg’s immediate release. The commutation was announced along with the Rich pardon. So was Clinton’s equally astounding decision to commute the 40-year terrorism sentence of Rosenberg’s co-conspirator, Linda Sue Evans. At the time of her arrest, Evans, who had harbored a fugitive fellow Weatherman terrorist from the Brinks murders and used a fake ID to buy a gun for Rosenberg, possessed hundreds of pounds of explosives with which she and her comrades were plotting to bomb the U.S. Capitol and various military installations. (Interestingly, Evans and Rosenberg were confederates of President-elect Obama’s friends, the former terrorists Bill Ayers and Bernardine Dohrn. Dohrn, in fact, did a short stint in jail for contempt of court when she defied a grand jury subpoena compelling testimony about the Brinks case.)

As you might imagine, I was stunned (as were others in my office) when the Rosenberg pardon was announced on January 20, 2001. I had publicly filed, among other things, a 60-page brief in the district court laying out the history of the Rosenberg case, refuting her frivolous arguments against the Parole Commission’s consideration of the Brinks evidence, and marshaling innumerable reasons why her sentence shouldn’t be reduced by a single minute.

To be sure, Clinton administration deliberations over the Rosenberg commutation were not as secretive as those involving Rich. While Quinn and Holder worked completely in stealth, Rosenberg’s lawyers tried a two-pronged approach: a short public relations campaign (timed for the end of Clinton’s term to make it difficult to coordinate an effective response) combined with exploitation of the Clinton White House’s bizarre pardon vetting operation — the very one that Holder, the deputy attorney general, had encouraged in order to cut the Justice Department, and particularly the Southern District, out of Clinton’s deliberations.

So in October 2000 a story broke in the New York press that Rosenberg would seek clemency from Clinton. Then, in mid-December, 60 Minutes ran a sympathetic profile, rehashing her attorneys’ bogus claims. Our office was tipped off enough to register opposition to a commutation through the normal Justice Department channels. We assumed that this information, especially in a time of terrorist assault against our nation (on which more momentarily), ensured that no commutation would be granted. But unbeknownst to us (though, of course, not to Holder), the game wasn’t being played by the regular rules. Rosenberg, it turned out, had her own Jack Quinn-like intercessor: Rep. Jerrold Nadler, the New York Democrat who pressed her case directly on the president.

As Clinton administration Deputy Attorney General, McCarthy notes, Holder signed off on “the terrorist pardons.” With Rosenberg’s Weather Underground buddy “Professor” Kathy Boudin in the news this week, McCarthy’s recollection is timely once again and, like Judge Mukasey’s, a reminder of the character of the Obama administration.